Opinion
March 8, 1996
Appeal from the Supreme Court, Nassau County, McCabe, J.
Present — Green, J.P., Lawton, Wesley, Doerr and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: John Delaney (plaintiff), a structural ironworker, was employed by third-party defendant Rise Steel Erectors (Rise) at a construction site owned by defendant Jerry Spiegel, managed by defendant and third-party plaintiff Jerry Spiegel Associates, doing business as Spiegel Associates (Spiegel Associates), and leased, in part, to defendant and third-party plaintiff Airborne Freight Corporation. Plaintiff fell 22 feet from structural steel beams he was attempting to weld without the benefit of any safety devices, sustaining leg, back and face injuries. The record establishes that Rise was a subcontractor to defendant and third-party defendant McLo Structural Steel Corp. (McLo), which had agreed to arrange, oversee and supervise the structural steel work pursuant to a written contract with Rockstone Development Corporation (Rockstone), an agent of Jerry Spiegel. McLo, therefore, is deemed the owner's agent for Labor Law § 240 (1) purposes ( see, Russin v Picciano Son, 54 N.Y.2d 311, 318; Townsend v Nenni Equip. Corp., 208 A.D.2d 825, 826, lv dismissed 85 N.Y.2d 967; D'Amico v New York Racing Assn., 203 A.D.2d 509, 510-511). Thus, Supreme Court properly granted plaintiff's cross motion for partial summary judgment on the issue of liability on the Labor Law § 240 (1) cause of action against Jerry Spiegel, Spiegel Associates and McLo ( see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501; Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 524, rearg denied 65 N.Y.2d 1054).
An owner or general contractor who is held strictly liable under Labor Law § 240 (1) is entitled to full common-law indemnification from the party actually responsible for the incident giving rise to plaintiff's injuries ( see, Chapel v Mitchell, 84 N.Y.2d 345, 347; Kelly v Diesel Constr. Div., 35 N.Y.2d 1, 4-7), i.e., "from the party that actually supervised, directed or controlled the work giving rise to the injury" ( Nappo v Menorah Campus, 216 A.D.2d 876, 877). The record establishes that, although plaintiff was supervised by a fellow Rise employee, a McLo representative also supervised the steel work on an occasional basis. Moreover, the record establishes that Spiegel Associates had two employees, a field supervisor and a project manager, at the site at all times. The field supervisor kept daily logs of the progress of the work and oversaw certain aspects of it and the project manager had the authority to stop any work that was not being done safely and to discuss with any of the contractors work that was not being performed in accordance with the specifications. Because that evidence does not resolve the issue of the control and supervision of plaintiff's work, we conclude that the court properly denied the cross motion of Spiegel Associates for summary judgment against McLo and Rise for common-law indemnification ( see, Gillmore v Duke/Fluor Daniel, 221 A.D.2d 938; Aragon v 233 W. 21st St., 201 A.D.2d 353, 354; see generally, Newin Corp. v Hartford Acc. Indem. Co., 62 N.Y.2d 916; Matter of Benincasa v Garrubbo, 141 A.D.2d 636, 637).
"[A] conditional judgment [of indemnification] may be entered where indemnification is based upon an express contract to indemnify against loss" ( Martinez v Fiore, 90 A.D.2d 483; see, McCabe v Queensboro Farm Prods., 22 N.Y.2d 204), unless that agreement purports "to indemnify a party for damages flowing from the intentional causation of an injury" ( Austro v Niagara Mohawk Power Corp., 66 N.Y.2d 674, 676; see also, Arell's Fine Jewelers v Honeywell, Inc., 147 A.D.2d 922, 923), or unless the agreement purports to indemnify or hold harmless owners or contractors from liability resulting from their own negligence, in whole or in part ( see, General Obligations Law § 5-322.1; Kinney v Lisk Co., 76 N.Y.2d 215, 218; Walsh v Morse Diesel, 143 A.D.2d 653, 655-656). Nonetheless, even where a contract purports to indemnify a promisee, such as an owner or a contractor, for its own negligence, the statutory prohibition against indemnifying that promisee is inapplicable and the terms of the indemnification agreement are valid to the extent that the liability giving rise to the indemnification is not predicated upon a finding of negligence ( see, Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 179).
The contract between Rockstone, as agent for Jerry Spiegel, and McLo for the structural steelwork expressly includes McLo's promise "to indemnify, defend and hold harmless" Jerry Spiegel and Spiegel Associates with regard to any suit or damages arising from McLo's work. Because the liability of Spiegel Associates to plaintiff arises solely by operation of Labor Law § 240 (1) and its imposition of absolute liability upon the agent of an owner, without regard to fault, and because McLo has not carried its burden of demonstrating that Spiegel Associates was negligent ( see, Brown v Two Exch. Plaza Partners, supra, at 175; Walsh v Morse Diesel, supra, at 655-656; Tedesco v Niagara Mohawk Power Corp., 142 A.D.2d 932), we modify the order on appeal by granting the cross motion of Spiegel Associates for summary judgment on its contractual indemnification cause of action against McLo. In all other respects, we affirm the order.